Archives for February 1997

This newsletter, edited by David Cohen, contains information pertinent to applicants for immigration to Canada in the various categories. The information contained herein is a compilation of recent postings on the misc.immigration.canada newsgroup, and appendices which will vary in content from issue to issue.

Visitor Visa Requirement

Q. I am a new H-1 holder. I am wondering if I can visit Canada without a visitor’s visa. Thanks in advance.

Answer: Your temporary status in the USA, in itself, is not sufficient to allow entry into Canada as a visitor without obtaining prior authorization.

Q. I have been approved in a Federal application. Due to certain circumstances, I may now need to reside in Quebec after landing. Do I have to go through any new procedures?

Answer: A change in intended destination (particularly to Quebec) prior to landing may be a material change to your application which is sufficient to require revision by the visa office. Following landing, your change in intention is not a consideration.

Q. I am a registered graduate student with full scholarship at a Canadian university. I came from Beijing, China. my wife and I plan to apply for PR in Canada soon.

It is said that interview can not be waived because a new policy came out recently. Is it true or just a rumor?

Answer: Although there has been a restriction placed on the issuance of interview waivers for offshore cases, the fact that you are within Canada does place you within the jurisdiction of the Buffalo IAPC. This,
in itself however, does not mean that an interview will not be required.

Q. My spouse will not be accompanying me to Canada. Does he still have to do medical examinations.

Answer: Even in the case that he is not included as an accompanying dependent, a spouse must undergo medical and security clearance unless a legal separation or divorce took place.

Comment: Applicable security clearances must also be provided in the event that a legal separation or divorce has not taken place with a non-accompanying dependent.
__________________________________________ 1.5 Parkinson’s Syndrome

Q. My spouse has early onset Parkinson’s Syndrome. Medication to control a tremor in her left hand costs us less than $100/month. Will this result in medical inadmissibility?

Answer: As is always the case, the evaluation of a medical condition depends on case by case circumstances, including history and prognosis. The Medical Officer’s Handbook provides several examples of Parkinson’s cases, and makes varying suggestions concerning medical assessment from M3 (admissible) to M7 (inadmissible). Two main considerations appear to be the age of onset (earlier being worse), and the rate of progression.

__________________________________________ 1.6 CCPE Assessment

Q1. I received all my BS’s and MS in accredited US university. Do they still have to verify to see if I am fit for the standard?

Answer1: Given that your undergraduate degree was obtained in the USA, you may wish to proceed without the CCPE assessment, and provide such only if requested.

Q2. I have a post-graduate degree in Engineering from within Canada. My undergraduate degree is from overseas, however. Is CCPE assessment required in my case?

Answer2: The assessment provided by the CCPE is largely based on the undergraduate level education that an applicant had received. As such, even in possession of a post-graduate education from within Canada, the evaluation of the Bachelor level education would be necessary.

Comment: Further details concerning the issue of CCPE assessment is provided in the appendices below.

Q. In the application form of the independent immigration, there is one field is “Intended Job”, and one field is “Present Job”. Does my present occupation have to be the same as my intended occupation?

Answer: Your intended occupation need not necessarily be consistent with your present occupation, as long as you are otherwise qualified to work in the former, and as long as you are qualified for such.

The points for experience will be calculated only on the basis of any intended occupation for which you may be eligible.

This newsletter, edited by David Cohen, contains information pertinent to applicants for immigration to Canada in the various categories. The information contained herein is a compilation of recent postings on the misc.immigration.canada newsgroup, and appendices which will vary in content from issue to issue.
__________________________________________ 1.1 FBI Clearance/Buffalo One Step Policy

Q. Does anyone know what will happen to my application if I send my application first and FBI clearance a few weeks later?

Answer: Although the submission of all documents are requested by the Buffalo IAPC as part of their one-step application procedure, this visa office will process your application prior to the receipt of the police clearance documents. This is not necessarily the case at all one-step posts.

__________________________________________ 1.2 Status at Time of Submission

Q. At the time that I submitted my application for PR, I was a student in Canada. Just prior to receiving my landing documents, I discontinued my education. Will this affect my status?

Answer: The fact that you were a student at the time that your application was submitted, assuming that you were the principal applicant, would have had no bearing on the outcome of the application.

Q. I have started the Ph.D. program in electrical engineering last September and finished the course requirement. I had an interview for PR in canada two weeks ago during which the officer went through my application and checked my education and working experience, etc. The officer approved my qualification for PR, but she asked to quit the Ph.D. and look for the job, then she will issue me a PR. Can i be refused?

Answer: There are no provisions in the Immigration ACT, its attendant Regulations, Canadian immigration Policy, or jurisprudence which provides for refusal on the grounds that have been indicated to you.

For some time, our office has noted the emergence of policies counter to this at certain visa offices. We are presently involved in representations addressing this issue, and will provide information regarding the outcome in an upcoming newsletter (no expected date as yet).

Comment: The recent court case of Margarosyan v. Canada (26.11.96) reversed the decision of an immigration officer who imported the assumption that the applicant was required to enter into her intended occupation (in this case as a Self Employed individual) _upon arrival_ in Canada. In this case, the definition of a Self Employed applicant, at no time, makes mention of this requirement.

Similarly, the definition of a skilled worker applicant (independent) does not, in any way, specify the requirement that an applicant engage in his/her intended occupation immediately following landing. The provisions of the immigration Act or the applicable Policy manuals do not bar an applicant who may not be able to engage in his or her intended occupation immediately, including for reasons of study within or outside of Canada, from succeeding in the immigration process. Such requirements, do not preclude such an applicants compliance with the requirements of an independent immigrant.

The full text of the Margarosyan v. Canada case is provided in Appendix 2.3.
__________________________________________ 1.3 CCDO/NOC

Q. Somebody told me that there is another book, similar to CCDO, published in 1992. I believe its called Canadian Ocupations Directory. Are job descriptions there similar to those is CCDO?

Answer: The National Occupational Classification (NOC) is not yet in effect for the
purpose of Federal applications. The definitions are not the same.

Q1. My understanding is that some sort of background check is done on every applicant, yet the crucial aspect is the scope of the check. It can be very broad and encompassing and, consequently, take a long time. Or, it can be of quite limited scope, which implies that it will be completed promptly.

Answer1: The scope of the procedure is not typically the consideration. Rather, the locations in which an applicant has resided, and sometimes the nature of his/her profession in such time is the determining factor for the length of the process.

Q2. As I also understand (which may be incorrect), it is up to the immigration officer to decide on the scope of background check which (s)he orders from relevant Canadian authorities. Thus, by determining the scope of the background check, the immigration officer is indirectly exercising control over the processing speed. In other words, if the immigration officer would like your application to be completed fast, (s)he would order one sort of background check. If not, then a more extensive background check will be ordered.

Answer2: There is nothing to suggest that an immigration officer, or his/her preferences for the conclusion of an application, has a bearing on the conclusion of the process.

Q3. It seem to follow from the postings on the newsgroup, that the background check on citizens of Western countries is completed very quickly, which results in a fast completion of an application (4-6 month), while some (not all) applicants from former Eastern block, PRC and some other countries have to wait much longer (up to 1-2 years). Say, I am a citizen of Russia, and I can potentially expect the background check on myself to take 1 year or more.

Answer3: Again, although certain countries are more prone to delays, it is not necessarily the case that all applicants from a certain country will incur such.

Q. I recently received permanent resident status in a country other than Canada. I expect to successfully conclude an application for similar status in Canada. Is there any way I can legally maintain the status in both countries.

Answer: An individual may not retain permanent residence in Canada and another country indefinitely. If it is determined that this individual had the intention to abandon Canada as his place of permanent residence, status could be revoked even if 183 days of absence had not been surpassed.

Informal Assessments: A memorandum was recently issued to all overseas visa offices under the title of Informal Occupational Assessments. Several key issues were addressed which may be of great importance to many applicants.

One of the main issues which is addressed in the first part of the memorandum is that of CCPE/CCTT evaluations. The content of the message, however, generalizes to many other occupations outside of these professional fields. The memorandum acknowledges that there are no legislative means by which such assessments can be made mandatory. This is equally applicable to one-step visa offices, which may already include such assessments in the list of materials formally required, with the possibility of an application being returned otherwise (on a side note, Manila has recently indicated that such assessments need not be provided until requested).

Most forms of informal assessments, by their nature, are general and do not have specific meaning to an individual seeking a specific position in a specific location. Visa offices were advised that applicants should be informed that, in the event of submission of such informal assessments, applicants should be advised that the results do not necessarily indicate that any guarantee exists as to their ability to meet local licensing requirements, where such may exist.

In lieu of mandatory assessments, however, visa offices were advised that “it is legitimate, in assessing Personal Suitability, to consider whether an applicant made reasonable efforts to determine whether he/she will be able to work in Canada.” Suggestion is made that applicants may be refused in the event that reasonable evidence that he/she is employable in the stated intended occupation is not provided, and the applicant is therefore not coded to an occupation on the General List.

Alternative means of providing evidence of employability are also provided, including provision of that graduation that an institution from which one has graduated is renowned in the field of that individual’s intended occupation.

2.1.2 Occupational Coding

Another issue which is addressed in the memorandum is the issue of occupational coding. In this section, it is acknowledged that visa offices are bound to the use of the Canadian Classification and Dictionary of
Occupations (CCDO) in the assessment of an individual’s intended occupation, the definition of such, and the evaluation of the applicant’s qualifications for such. Specific mention is made that the National
Occupational Classification (NOC) cannot be used for this purpose, although it may be used as a source of Labour Market Information (LMI).

Labour Market Information refers to information provided from within Canada in reference to the requirements of a specific position. Some aspects that LMI may address include:

1. Is there a mandatory requirement for licensing; will the applicant be likely to qualify for such?; 2. does the applicant satisfy all of the CCDO’s requirements for education, training, and experience? 3. does the fact that the applicant had a similar title in his/her home country reflect an ability to work in such in Canada?

2.1.3 Post Graduate Research Experience

Some discussion is given to the applicability of post-graduate research experience for the purpose of the evaluation of an applicant’s work experience. Some concern is expressed regarding the coding of an applicant to an occupation in which “they have limited or no post-university experience.”

Although the memorandum states that “the research performed may indeed provide acceptable experience for practice of the profession itself”, it is also mentions the coding of an applicant to the RESEARCH ASSISTANT (CCDO 9919-108) designation in cases where an applicant has gained experience from the research component of graduate level disciplines. The memorandum closes on this issue by stating that each case must be considered on its own merit, and without having made a firm final statement in either favor.

This emphasizes the necessity of proper presentation of post graduate work experience for applicants who wish to rely on such experience. Since the issuance of this memorandum, this office has not noticed any decrease in the levels of success of our own clients for whom such experience has been important, and in some cases critical.

__________________________________________ 2.2 Beijing

As of January 23, 1997 and until March 3, 1997 immigrant interviews have been suspended at the Canadian Embassy in Beijing. Some exceptions may apply.

The purpose of this suspension has been to review all cases in which service standards have been exceeded, and to help to reduce the backlogs of cases under certain categories. Indications are that this effort has allowed for a significant increase in the numbers of interview waivers.

Accompanied by no increase in resources available to the visa office, the Embassy in Beijing has experienced an increase in cases of over 161% since 1995, represented by over 10,000 immigrant applications.

__________________________________________ 2.3 New Delhi

Indications suggest that cases in which selection interviews are not required in New Delhi will be more efficiently processed. Cases in which selection interviews are required, however, will be “significantly delayed.” No interviews for Independent/Business cases are expected until at least April or May of 1997.

Applicants applying under the independent categories are advised that a letter from the Reserve Bank of India indicating that transferable settlement funds exist may be required.

The High Commission in New Delhi advises that CCPE assessments are not required. In the event that a case is “borderline,” however, provisions of such is recommended.

The contents of this newsletter may be redistributed in whole, with the express condition that no changes be made to the content within.
__________________________________________2.1 Skilled Worker Historical Performance Statistics

These reasons arise out of an application for judicial review of a decision of a visa officer wherein the visa officer refused the Applicant’s application for permanent residence in Canada. The decision is dated the 13th day of December, 1995.

The Applicant is a citizen of Turkey. She applied for an immigrant visa to Canada under the self-employed guidelines. At the heart of those guidelines is the definition “self-employed person” in subsection 2(1) of the Immigration Regulations, 1978 which reads as follows:

“self-employed person” means an immigrant who intends and has the ability to establish or purchase a business in Canada that will create an employment opportunity for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada;

The Applicant has received extensive training as a classical ballet dancer. At the time of her application for permission to come to Canada, she was teaching classical ballet in Istanbul, Turkey at the Istanbul University National Conservatoire, and was the principal dancer in the Cagdas Bale Groupe.

In the letter conveying the decision here under review, the visa officer wrote:

In my opinion, you do not meet this definition [the definition “self-employed person”] because you do not have the intention to establish your own school or dance company upon your arrival in Canada. You indicated clearly at the interview that your intention, if you go to Canada, is to first work for existing schools or companies and perhaps later on, start your own business. In addition, you do not appear to possess managerial experience in setting up and administering a private business.
[underlining added by me for emphasis]

The visa officer went on to consider the Applicant’s application as an independent applicant. He determined the then current occupational demand for ballet teachers in Canada to be zero. He was therefore obliged to reject the applicant under this category. Finally, he determined that there were insufficient humanitarian and compassionate grounds to warrant special consideration.

In her affidavit, the Applicant attested as follows:
…

7. I believe that upon my arrival in Canada I would be able to teach ballet to many different schools as the need for skilled classical ballet teachers is very high as outlined in the letters [found attached to her affidavit]. Through teaching at different schools I would be able to discover how Canadian ballet schools operate and thus have the ability and experience to open my own school. I believe that my qualifications and experience would enable me to open my own school and teach ballet.

In his affidavit that was before me, the visa officer attested in part as follows:

4. At the beginning of the interview, [the interview conducted by the visa officer with the Applicant and her husband] the Applicant showed her reference letters. She had many from dance companies and schools in different countries. We then spoke of her education and of her work experience. It seemed to me that she was a qualified and experienced ballet dancer and teacher. She was teaching in the conservatoire, however, she has never operated her own school, and did not have any experience in the management of a dance school.

5. When I asked the Applicant if she had inquired about the steps and the ways to open a dance school in Canada, she said she had not, but again she showed me letters from Canada which mention that the writers were prepared to help her find employment.

6. At this point, as I was not sure that the Applicant understood, I asked Tulay Nergiz, a locally-engaged employee, to assist as interpreter. Again we repeated the definition of the self-employed category. The Applicant’s spouse said that the consultant advised them to apply as self-employed. He stated further that, of course, like every one, they would like to establish their own business one day, but they have first to work for others in order to raise money. Accordingly, I very clearly asked if their plan was, when they go to Canada, to find work for the Applicant in dance companies or schools. The Applicant and her spouse replied in the affirmative.

In Ho v. Canada (Minister of Employment and Immigration), a case with significant features in common with this matter, Associate Chief Justice Jerome wrote:

It is important to bear in mind that Parliament’s intention in enacting the Immigration Act is to define Canada’s immigration policy both to Canadians and to those who wish to come here from abroad. Such a policy cannot exist without complex regulations, a good many of which appear to be restrictive in nature, but the policy should always be interpreted in positive terms. The purpose of the statute is to permit immigration, not prevent it, and it is the corresponding obligation of immigration officers to provide a thorough and fair assessment in compliance with the terms and the spirit of the legislation.

Associate Chief Justice Jerome repeated the paragraph just quoted in Yang v. Canada (Minister of Employment and Immigration), heard by him the same day as Ho, and also a case with a factual background similar to that in this matter.

In the paragraph quoted above from the visa officer’s decision letter, I have highlighted the words “…upon your arrival in Canada.” It is to be noted that those words do not appear in the definition “self-employed person” also quoted earlier in these reasons. If the Governor-in-Council had intended that the underlined words be read into the definition “self-employed person”, it would have been an easy matter to insert the words. The Governor-in-Council not having done so, against the “…obligation of immigration officers to provide a thorough and fair assessment in compliance with the terms and the spirit of the [Immigration Act]”, propounded by Associate Chief Justice Jerome, I conclude that it simply was not open to read in those words on the facts of this matter. So long as the Applicant’s intent was bona fide, I conclude that it was not necessary that her intent to establish a business in Canada relate to immediately upon her arrival in Canada or within any finite period following arrival in Canada. The visa officer did not question the bona fides of the Applicant’s intent. In the result, I conclude that the visa officer erred in law on the face of his decision.

Two subsidiary grounds for the visa officer’s decision appear from the quotation above. The visa officer implies that the Applicant’s intention to establish her own business is speculative when he writes “… and perhaps later on, start your own business.” I find nothing in the material that was before the visa officer to support a conclusion that the applicant’s intent was speculative. While the time at which the intent to establish her own business would be realized was undetermined, the material that was before the visa officer, and therefore before me, satisfies me that the Applicant’s intention was firm.

Finally, the visa officer expressed concern that the Applicant did “…not appear to possess managerial experience in setting up and administering a private business”. In Grube v. Canada (Minister of Citizenship and Immigration), Mr. Justice MacKay dealt with an application for judicial review of a visa officer decision respecting an individual who sought to come to Canada as a self-employed ballet coach/choreographer. He wrote:

In my view, in the case before me the visa officer placed undue emphasis on the lack of past business experience as a self-employed person when assessing the application[s] of… Ms. Grube… . That experience, as a self-employed person, may well be a factor to be favourably considered when determining whether an applicant is likely to become successfully established as a self-employed person in Canada, but it is not the sole criterion to be considered, and it must be considered in light of the occupation sought to be undertaken in Canada. It may be of greater significance in relation to certain occupation than to others.

In the circumstances here, the visa officer stated… that he would not grant favourable consideration to Ms. Grube’s … application for permanent residence unless documentation related to past business records and to past experience as a self-employed person was provided. In my view, those statements indicate that the visa officer placed undue emphasis on past experience. Indeed, the lack of past experience was determinative of the decision…, as the visa officer indicated that it was only through adducing such evidence that [Ms. Grube] could succeed. As in Ho, this undue emphasis on past experience made it virtually impossible for the applicant[s] to succeed in [her] application[s].

I am satisfied that the same can be said on the facts of this matter. The Applicant’s qualifications and experience as a dancer and as a teacher of classical ballet were not in question. She adduced evidence before the visa officer from Canadian sources indicating “continuing need for persons with training such as [hers]” and that there are in Canada “…many opportunities for teaching professionals with [her] level of expertise.” I am prepared to assume that the level of business experience required to operate a ballet school in Canada would be substantially easier to acquire through observation or through employment of others than would be acquisition of the artistic and teaching skills possessed by the Applicant.

For the foregoing reasons, I am satisfied that the visa officer erred in a reviewable manner in rejecting the Applicant’s application in the self-employed category. In the result, this application for judicial review will be allowed, the decision of the visa officer will be set aside and the matter will be referred back to the Respondent for reconsideration and redetermination by a different visa officer.

Neither counsel recommended certification of a question. No question will be certified.

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